FOIA Delays Lead to Tongue Lashing by the Fourth Circuit

May 9, 2013

A recent Freedom of Information Act (“FOIA”) decision from the U.S. Court of Appeals for the Fourth Circuit sends a strong message to federal agencies that the statutory time limits for FOIA responses must be honored.

On February 29, 2008, John J. Coleman filed a FOIA request with the Drug Enforcement Administration (DEA) seeking documents related to the scheduling of a drug, carisoprodol, under the Controlled Substances Act.  Dr. Coleman offered to reimburse appropriate costs up to $1,000.  Under FOIA, the DEA had 20 working days to respond unless it notified Dr. Coleman that “exceptional circumstances” warranted an extension.  The DEA did not provide a notice of exceptional circumstances and did not respond at all until “one year, four months, and ten days after receiving Dr. Coleman’s request.”  At that time, the DEA denied the request, on the grounds that $1,000 would not cover estimated fees of $1,780.75.  Dr. Coleman appealed the fee assessment to the Department of Justice’s Office of Information Policy (“OIP”).  He contended that fees should not apply given the DEA’s “excessive delay” and given that he was eligible for a fee waiver as a noncommercial requester.  The OIP took “seven months and eleven days” to respond.  The OIP apprised Dr. Coleman that it had remanded his request to the DEA for “reprocessing, including further consideration of [the appropriate] fee category.”  After hearing no response for another four months, Dr. Coleman filed suit pro se in federal district court.  The DEA moved for summary judgment arguing that Dr. Coleman had failed to exhaust administrative remedies and failed to pay the necessary fees for processing his request.  The district court granted the DEA’s summary judgment motion.  Dr. Coleman appealed to the Fourth Circuit.  The Fourth Circuit, in Coleman v. DEA, reversed and remanded, finding in no uncertain terms that the DEA and OIP had demonstrated an “utter lack of due diligence” and that Dr. Coleman had faced “extended and inexcusable agency delay.” 

The Fourth Circuit opinion, in effect, closes two potential loopholes in the FOIA time limits.  First, the court rejected an argument by the DEA that it and the OIP had responded to Dr. Coleman prior to his lawsuit, and that even if the responses were not timely, the responses barred suit.  The court reasoned that despite the DEA’s and OIP’s responses, to date, the continuing remand amounted to a continuing non-response and that “[a]lthough FOIA does not explicitly contemplate remands following administrative appeals, it is inconceivable that Congress intended to allow agencies to escape FOIA’s time limits by sitting on remanded requests indefinitely.”  Second, the court rejected DEA arguments that Dr. Coleman had not exhausted administrative appeals for his fee waiver request.  The court reasoned that “[t]he DEA would create a rule under which a FOIA requester must make distinct arguments addressing every individual component of an adverse fee determination before obtaining judicial review of that determination.”  It observed further that “holding an ordinary citizen . . . to such an exacting standard would impose a burden not authorized by FOIA and would frustrate the statute’s purpose of ‘assur[ing] the availability of Government information necessary to an informed electorate.’”    

It is worth noting that the OPEN Government Act of 2007 was not in effect at the time of Dr. Coleman’s FOIA request.  It now provides federal agencies another means of extending the 20 day response period, besides “exceptional circumstances.”  Under the “new” exception, if a federal agency finds that it needs additional information in order to respond to a request, it may contact the requester and, thereby, toll the 20 day period until it receives a reply.  Even with the new exception, Coleman nevertheless portends that agency delays outside of the ambits of the law will not be tolerated.